Birbal vs Sharbati

S.S. Grewal, J.—This petition u/s 482 of the Code of Criminal-Procedure (hereinafter referred to as the Code) relates to the quashment of order of the Judicial Magistrate 1st Class, Hisar dated 14.9.87 and that of Sessions Judge, Hisar dated 29.9.89 whereby maintenance at the rate of Rs.300/- per month had been granted in favour of Smt.Sharbati against her husband Birbal (the present petitioner) u/s 125 of the Code.

In brief facts relevant for the disposal of this case are that marriage between the parties was solemnized on 25.3.78. No child was born out of

the said wedlock. After the marriage they could not pull on together, and, the husband turned out his wife. Initially there was a compromise but the parties could not live together and started living separately from each other. It was also pleaded that the wife was tortured by the husband and on that account she is living with her parents and is unable to maintain herself It was further pleaded that the husband was working as a clerk in a brick-kiln and was earing Rs. 1,000/-per month.

The learned counsel for the parties were heard.

On behalf of the husband it was vehemently argued that the husband is working as a mere labourer at the brick-kiln and both the Courts below

have erred in assessing his monthly income to the extent of Rs. 1,000/-. There is enough material on the record including the statement of the wife to the effect that her husband (present petitioner) is working as a Munim at the brick-kiln and is earning Rs. 1,000/- per month. For the reasons best known, the husband did not step into the witness box to depose about his claim that he was merely working as a labourer in the brick-kiln.

Even otherwise the husband is an able-bodied person, and, even, while working as a labourer would be able to earn about Rs.25/- or Rs.30/-

daily, In that eventuality, his monthly income would be between Rs.750/- and Rs.900/-. The other argument advanced on behalf of the husband that the wife herself is working as a labourer and is earning sufficient income to maintain herself is hardly tenable, in view of the fact that there is not reliable material on the record either about the ages of the wife, or, the exact income which she would be able to earn while working as a labourer.

Mere fact that the wife was forced to work as a labourer, would not be sufficient to hold that she is in a position to maintain herself or that the husband would be absolved of his duty to maintain his wife.

The impugned orders passed by the Courts below do not suffer from any legal infirmity. This petition is accordingly dismissed.